It's well established in U.S. law that husbands and wives don't have to testify against each other in court. Marriage is considered a sacred trust that government cannot undermine.
But for the most part, there is no such protection for parents and children. Legislators in Massachusetts are pushing for a parental privilege, which would make it the fifth state to recognize a parent-child privilege.
'You Don't Betray Your Family'
Although it's a parent's most basic instinct to protect his or her child, in most of the country, when a kid is in trouble with the law, parents who may want to help their child are required instead to help prosecutors.
"You can't imagine — it turned into a nightmare," says Arthur Yandow, who was living in Vermont with his 25-year-old son, Craig, when Craig was accused of rape.
Prosecutors heard he had confessed to his folks, so they subpoenaed them to testify.
Mom and Dad were faced with sending their kid to jail — or going to jail themselves.
"It wasn't even a close call. It was family. And you don't betray your family. You don't rat on your own kid," Arthur says.
The Yandows were finally released from jail, after prosecutors managed to come up with enough other evidence to arrest Craig. Arthur says that should have been their exclusive focus from the start.
"We weren't trying to get him off, because he owed society and his victim," he says. "But the trust you build up with your kids needs to be protected, and I don't feel the state has the right to come along and tear it to pieces. You know?"
Indeed, Yandow says government has an interest in nurturing that trust and making sure parents and kids are protected if they want to have a heart-to-heart about anything.
"I actually was quite shocked to find out there wasn't an ability to do this," says State Sen. Cynthia Stone Creem, who is pushing for a parental privilege in Massachusetts, where kids are protected from testifying against Mom or Dad but parents don't have the same right.
"If a child comes and says, 'Look, I did something bad and I need to talk to you,' what is a parent to do? Say, 'Go talk to the priest or the rabbi, I'll bring a lawyer and you'll talk to a lawyer'? It's hard enough to get kids to talk. And the likelihood is that they might turn around and say, 'Forget it.' "
Where Do You Draw The Line?
It's the law in many other countries, but in the U.S., only four states recognize a parent-child privilege. National legislation — filed after Monica Lewinsky's mother was called to testify against her — has repeatedly failed.
Rob Giles with the National District Attorneys Association says the privilege for parents can't come at the expense of justice for victims. "Yes, we want children to trust their parents, but ... when we have a child who's committed a crime, there are times when society needs to be protected from that person — and they need to be held accountable," he says.
Giles says prosecutors and judges should have discretion. What if a child is accused of hurting a sibling? What if there is no other way to get the evidence? And, Giles says, it's a different issue if a child is 10 — or 25, as in the case of the Vermont man accused of rape.
"It's an adult. And I don't think the parent should be allowed to hide behind the privilege. To me, it's a no-brainer," he says.
And where do you draw the line on who else could claim the privilege? Daniel Capra, who works with a committee that helps draft federal rules of evidence, agrees blanket legislation would be extreme.
"I'm very close to my uncle," he says. "He raised me and I consider him a dad. So, do I get to invoke parent-child privilege? Why isn't that protected?"
A Focus On Strengthening Family
Floyd Prozansky, a state lawmaker pushing for a parental privilege in Oregon who is also a prosecutor, says it seems like prosecutors' focus is "getting the conviction at any cost."
He says changing views on mental health — which only recently brought about a new privilege for therapists' current focus on families — might spawn a new privilege for parents.
"Especially in today's time, we have so many people talking about wanting to strengthen the family," he says. "To me, it only makes sense that you would encourage kids to be able to turn to their parents for guidance."
Both sides agree it's relatively rare to see prosecutors actually force parents to testify against their kids.
They're reluctant — not just because of social costs — but also strategic ones. When juries see a mother, for example, forced to turn on her own kid, their sympathies tend to be with the family, not prosecutors.